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Ashok Malik is a very well-respected political commentator in the Indian media. It is not without cause. He has experience of many decades, both as a reporter and a commentator on matters of public importance. That Malik writes for all the mainstream publications in India is a testimony to the wide readership and credibility he enjoys. It is for this reason that I read with great interest his conscientious objection to Afzal Guru’s hanging. Unlike commentators of leftist persuasion, Malik has mostly a right of center view on most public issues and therefore his views against Guru’s hanging have an extra salience.

After reading the piece, I must confess, I am left disappointed. The piece covers no new ground and mostly restates many already touted reasons. However, what is surprising is that Malik’s piece actually introduces a rather startling formulation of addressing political problems by commuting death penalties. We will get to there, but first let’s list out the other reasons that Malik offers for his conscientious objection and why I think each of them is wrong!

1.No Direct role of Afzal Guru in Parliament Attack (13/12): This is an argument that has been advanced by most leftist, bleeding-heart supporters of Afzal Guru and therefore a bit surprising that Malik too chooses to consider this to be an important factor. In criminal conspiracies, there is hardly ever going to be a written contract on stamp paper, delineating the role of each conspirator, and thus leading to recovery of hard evidence, and not just circumstantial evidence, to nail the conspirators. In terror cases like 13/12, laughable to think that there ever will be any evidence beyond circumstantial. Malik concedes that there is precedence of hanging conspirators who were not present on scene of crime but nonetheless argues that life term would have been sufficient in case of Guru. To advance Malik’s logic, would it apply in case of Hafiz Saeed too for 26/11 case, should India ever get him? Unlike Guru, Saeed was not even in the same country at time of 26/11, an even more mitigating circumstance ! What about Osama Bin Laden for 9/11? The US did not give him any trial, forget a fair trial, but in Malik’s world, had Osama been apprehended alive, would he qualify for hanging or life term?

2. Delay in deciding on mercy plea: Malik correctly states that mercy petition of Guru was filed by his supporters AND NOT by Guru himself, as is the case in most cases of death convicts. In fact there is nothing on record to suggest that Guru ever regretted his role. Yet, the state ought to have shown mercy to him? That there has been a mistake because of delay in doing the correct thing therefore the mistake must be further compounded by showing mercy to a non-repentant terrorist is a strange logic to make.

3. Political calculations in Congress decision to hang Guru : This argument has been advanced at two levels – one, that Congress took the decision in partial response to Modi’s rise at national stage and two, that while Maqbool Butt’s hanging in mid 1980s had at least some national purpose, Guru’s hanging is purely in Congress party’s interest. As Supreme Court has argued multiple times in a different context, the motive of a person making a complaint against a corrupt official is irrelevant as long as there is merit in the complaint. Similarly, Congress party’s calculations are irrelevant as long as decision to hang Guru was the right one. That political parties will try to time decisions for their own partisan benefits is sine qua non. Which party will ever wake up one day and say “let’s do something today which will harm our political interests? ” The only relevant factor is, whether the decision was correct one?

4.Selective commuting of death sentences: On the face of it, this is a logical argument to make. Also interconnected with this question is the larger debate on the way the mercy petitions are handled in India. In the specific case that Malik mentions though, of Bantu, it is worth noting that Guru did not file his own mercy petition but his supporters did on his behalf. Bantu, however, filed his own mercy petition. If one is looking at potential to reform, this is the first point to start looking. Secondly, Bantu, by available info (subject to correction), was a one time criminal. Yet, considering the gravity of his crime, he correctly got the death sentence. Guru, on the other hand, was a former terrorist, who went through the farce of surrender, and then conspired to attack the greatest symbol of Indian democracy. Does that look like a man who could be reformed?

On the larger question though, the way mercy petitions are dealt with definitely needs reform. It is criminal to keep petitions on hold for years. The parliament ought to amend the law limiting the maximum time frame in which mercy petitions must be disposed off, capping the time limit at say 3 months. In addition, post a decision on mercy petition, further judicial intervention must only be allowed in case mercy petitions are entertained (and thus going against SC judgement) and not when they are rejected. Cases like that of Rajona would automatically become infructuous.

5. Gesture of goodwill to Kashmir Valley: This is perhaps the grand argument that Malik wanted to make in his piece, and the other objections to Guru’s hanging were merely a build up to arrive at this narrative. But let us quote Malik himself in an earlier part of the piece before he makes his “goodwill gesture” argument: “When the mercy petition becomes a political plaything, it becomes inherently problematic.” So it is all right to do politics of one kind over mercy petitions but not politics of another kind? What else is the goodwill gesture towards Kashmir, if not politics?

However, since this is the central thesis of Malik’s piece, let us examine it in some detail. Tavleen Singh in her recently released autobiographical account, Durbar, recounts in some detail the difference between the historical Kashmir problem and the modern Kashmir problem. In an earlier post , I have reviewed Singh’s book and this is discussed in some detail. Briefly, historical Kashmir problem was more or less over with the signing of Indira-Sheikh accord in 1975 and free and fair elections in Kashmir in 1983. What we witness today is a distinct, modern Kashmir problem – one which started in 1989 and which is primarily an Islamist problem and part of the global Islamist revivalist movement. The leaders of modern Kashmir problem are all Islamist, their dream is a Sharia state, their rhetoric is Islamist and they have not balked at endorsing terrorism towards achieving their political goal. Kashmiri Pandits were ethnically cleansed during this modern Kashmir problem and not when Sheikh Abdullah was fighting for what he thought was a just cause. To argue that “goodwill gestures” to such Islamist movements will somehow make them see reason is missing the woods for the trees. As the noted historian Bipin Chandra argues, making goodwill gestures to extremist movements almost always ends in having the opposite result than the indented one. The reason is simple – if the extremist were to become reasonable post a goodwill gesture, he would become jobless. He must therefore invent some new grouse to keep himself occupied. Periodically, new extremists also rise, who to earn their spurs, invent new causes to make their careers, the demands escalating each time. Pander to their demands for mercy to Guru and they would whip up some other demand to keep relevant. Else who will pay attention to them? Have we not seen this cycle repeat endlessly? Banned Satanic Verses as a goodwill gesture and 25 years later, Viswaroopam was being censored inside drawing rooms of aggrieved thekedaars of sensitivities !

Malik’s formulation has another dimension – statesmanship. The argument is that the nation must sometimes show statesmanship in face of provocations, terror or even attack on Indian state. Statesmanship is a peculiar disease that only afflicts third world countries and their leaders. Never in history, has any consistently winning side shown statesmanship in dealing with those it sought to defeat as part of its national effort. Only consistently losing sides have taken refuge in statesmanship. Did the coalition powers show statesmanship towards a defeated Germany or did they go ahead with Nuremberg trials? Did the United States show statesmanship towards Iraq post 1991 Gulf War? Was Gaddafi treated in a “statesmanlike” fashion? India on the other hand shows statesmanship at vital times – Nehru in 1948 by going to UN, Shastri in 1966 by signing away Haji Pir pass, Indira most famously in 1972 in Shimla pact. What has been the result of these “goodwill gestures” or bouts of grand statesmanship? Ever wondered why India is disregarded in its neighborhood despite being so enormously bigger than most of its neighbors? Consider the developments in Male as latest example. Because India does not avenge the assassination of its Prime Minster at the hands of Tamil terrorist, it does not avenge an attack on its parliament, it does not avenge an invasion through the sea and it does not avenge the beheading of its soldiers inside its own territory.

The argument can be made that in this case we are not talking of gestures between nations but towards our own people. True. But such gestures should be shown to people way below a threshold – say the stone throwers in Kashmir who were arrested, and not to those who attacked Indian Parliament. Likewise, goodwill gestures should be shown, for example, to ordinary tribal caught in the Maoist belt and not to the murderous Naxalite leadership. Else, Malik’s logic extended, will apply in the case when India does it grand peace bargain with Pakistan – pardoning of Hafiz Saeed and perhaps sharing a platform with him will be part of the deal!

excellent. For point 5 you could also add that when SAS Geelani was dying of cancer Govt of India saved him but that did not help much in improving situation. Come 2009 the old man showed his treachery by objecting to land transfer for Amarnath Yatris and by 2010 we had a full blown stone pelting rebellion. SAR Geelani was spared but that did not help also

A few points
No Direct role of Afzal Guru in Parliament Attack :
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Agreed there are frequent convictions based on circumstantial evidence but here it is a matter of life and death. In this very case the trial court had sentenced 3 persons to death based on circumstantial evidence (Geelani,Afzal & Shaukat).Next the high court decided that circumstantial evidence is not good enough for one of them, so from gallows -> freedom for Geelani . But still sentences 2 people to death.Next SC decides it was wrong to send shaukat to gallows , so now its gallows -> 10years imprisonment.So at each stage of the trial , one person sentenced to gallows is either acquitted or given a far reduced sentence. What is the probability that if there was one more level of court, would they still have Guru sentenced to death? Considering this and considering the circumstantial evidence that too for a facilitating role in the conspriracy , can one say with 100% confidence that Guru must be sent to gallows ? Any humane and right thinking person will give the benefit of doubt and commute the sentence to life imprisonment without parole, which is also very harsh.

Delay in deciding on mercy plea: –
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Mr Mishra says that the delay in hanging was a mistake, correct it , so hang Afzal. What he conveniently fails to mention is that based on this same delay two other convicts in similar cases have appealed to the courts , that the undue delay in decision of the mercy petition amounts to unusual cruelty.And the courts ACCEPTED this petition.Can Mr Mishra explain why the same right to appeal was not given to Afzal Guru? Why was he suddenly executed in secret? Why did they not tell the rejection of the petition in advance so that Guru’s lawyers could file a petition in court just like others.This is sheer double standards befetting a banana republic and it is for this reason Mufti sahab said so.

Political calculations in Congress decision to hang Guru
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Here Mr Mishra says even if there were political calculations the decision to hang Guru was the “correct” one , so everything is hunky dory.The term correct is highly subjective.He may well think that it was correct to hang Guru , but there are plenty of people who think otherwise , and for good reasons.Justice as they say must not only be done but must seen to be done.It was another matter if Guru was allowed to exhaust each and every legal opportunity before he was hanged.(Now spare me the BJP crap of prez rejecting mercy petition as final, no it is not).It was not in rajaona’s case, not in Bhullar’s case, not in Rajiv’s killers case and not in veerappan’s case (yes they filed a petition in SC challenging the execution )

Selective commuting of death sentences
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here Mr Mishra conveniently points to Guru’s past background in citing lack of remorse or ability to be reformed.No sir that was before the crime. His ability to be reformed or his regret or the lack of it has to be determined by consulting the people he interacted with after he is in prison i.e. the prison officials and his conduct in Tihar. And what is this point about guru “himself not filing”.How does it matter if he files a mercy petition or his wife or someone else.Has he said that he has no regrets? Has he said I am happy with what I did , send me to gallows as Rajoana is actually saying (yes he is still living)

Gesture of goodwill to Kashmir Valley
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Mr Mishra says that “modern Kashmir problem” post 1989 is part of a global Islamic revival and is not connected to its past in 1947. This is a joke. Everyone knows that Kashmiris were always demanding autonomy and they agreed to join Indian union on their own terms. But continuous interference ,misrule and diluation of autonomy reached a flashpoint in 89 and of course Pakistan support worsened it.But to deny the existence of Kashmir issue is only not facing facts.
Secondly Kashmiris did not want Guru’s sentence commutation as a gift to a beggar.No they want him to be treated fairly and equally like any other person.Which is why they do not like the double standards for him and others like rajiv’s killers.They wanted him to meet his family and deserved the right to be buried in his homeland.